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Diplomatic Asylum and the Assange Case

Abstract
Abstract

This article traces the place and development of diplomatic asylum in international law in close connection with the more specific questions raised by the case of Julian Assange, who was granted asylum in the Ecuador embassy in London on 16 August 2012. After discussing the historical rise and decline of diplomatic asylum, the article reviews the current status of diplomatic asylum in international law and its implications for the triangular legal relationship between the United Kingdom, Ecuador, and Mr Assange. The article submits that, although there would not seem to be a title in general international law or human rights law for Ecuador to grant asylum to Assange, there is no obvious legal route for the United Kingdom to terminate the asylum. The fate of Assange resembles that of a long series of historical precedents where diplomatic asylum resulted in protracted stays. Although this may seem an unsatisfactory result from the perspective of international law, the uneasy balance between territorial sovereignty and diplomatic inviolability also engenders incentives to avoid disputes or to resolve them through diplomatic channels.

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1 A. Jacobs and J. Ansfield, ‘Challenge for U.S. after Escape by China Activist’, New York Times, 27 April 2012; J. Adetunji and L. Davies, ‘Julian Assange Granted Asylum by Ecuador—as It Happened’, Guardian, 16 August 2012.

2 C. Gardner, ‘Julian Assange: Can Ecuador's Embassy Be Stripped of Its Diplomatic Status?’, Guardian, 16 August 2012; R. O'Keefe, ‘Enter at Your Own Risk’, EJIL: Talk!, 16 August 2012, http://www.ejiltalk.org/enter-at-your-own-risk; D. Akande, ‘The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador's Embassy?’, EJIL: Talk!, 17 August 2012, http://www.ejiltalk.org/may-the-uk-terminate-the-diplomatic-status-of-ecuadors-embassy; J. Kurbalija, ‘International Law and the Assange Asylum Case’, Diplo, 20 August 2012, http://www.diplomacy.edu/blog/international-law-and-assange-asylum-case; J. Ku, ‘Can We All Admit that Assange Has No Legal Case for “Safe Passage”?’, Opinio Juris, 21 August 2012, http://opiniojuris.org/2012/08/21/can-we-all-admit-that-assange-has-no-legal-case-for-safe-passage.

3 Thus reads the title of Chapter XXI of Van Bynkershoek's treatise on diplomatic law: C. van Bynkershoek, De Foro Legatorum Liber Sigularis (1744/1946), 113.

4 Porcino P., ‘Toward Codification of Diplomatic Asylum’, (1976) 8 NYJILP 435, at 448–52; Jeffery A.J., ‘Diplomatic Asylum: Its Problems and Potential as a Means of Protecting Human Rights’, (1985) 1 SAJHR 10, at 22–6. See further the views of Australia (which initiated the discussions on codification in the UN General Assembly in 1974), Bolivia, Ecuador, Jamaica, and Liberia in UN General Assembly. UN General Assembly, Question of Diplomatic Asylum: Report of the Secretary-General, UN Doc. A/10139 (Part I) (1975) (hereafter Report of the Secretary-General, Pt I).

5 S. P. Sinha, Asylum and International Law (1971), 21; Reale E., ‘Le droit d'asile’, (1938) 63 Recueil des cours de l'Académie de droit international 469602, at 513; UN General Assembly, Question of Diplomatic Asylum: Report of the Secretary-General, UN Doc. A/10139 (Part II) (1975) (hereafter Report of the Secretary-General, Pt. II), para. 2.

6 A. Gentili, De Legationibus Libri Tres (1548/1924), 104–5; F. Suárez, De Legibus et Deo legislatore [1612], Selections from Three Works of Francisco Suarez (1944).

7 Sinha, supra note 5, at 21.

8 Moore J. B., Digest of International Law, Vol. 2 (1906), 762.

9 Ibid., 763–6; Reale, supra note 5, at 518–22. Also see Report of the Secretary-General, Pt II, supra note 5, para 3.

10 Moore, supra note 8, at 765.

11 Ibid., at 761; Reale, supra note 5, at 520–2; Report of the Secretary-General, Pt II, supra note 5, para. 5.

12 H. Grotius, De Jure Belli ac Pacis (1625/1925), Bk. II, Ch. 18, Section IV, para. 5: ‘[B]y a similar fiction, ambassadors were held to be outside the limits of the country to which they were accredited. For this reason they are not subject to the municipal law of the State in which they are living.’

13 Van Bynkershoek, supra note 3, Ch. XVI, at 79–80. See also F. Hélie, Traité d'instruction criminelle, Vol. 2 (1866), para. 127; G. F. de Martens, Précis du droit des gens modernes de l'Europe (1864), Bk. VII, Ch. V, para. 220. Courts of various jurisdictions came to deny the theory of exterritoriality in the twentieth century, e.g., Court of Appeals of the District of Columbia (United States) 12 July 1963, Fatemi v. United States, 192 A.2d 525, 528 (D.C. 1963); Court of Criminal Appeal (United Kingdom) 5 February 1941, R. v. Tyler Kent, [1941] 1 KB 454; Conseil d'État (Belgium), Belgian State v. Maréchal, 1954, International Law Rep. 249.

14 Van Bynkershoek, supra note 3, Ch. XXI, at 114–15.

15 E. de Vattel, Le droit des gens (1758/1867), Book IV, Ch. IV, para. 118.

16 Moore, supra note 8, at 766–7. Also see Reale, supra note 5, at 527–8.

17 See, extensively, Morgenstern F., ‘“Extra-Territorial” Asylum’, (1948) 25 BYBIL 236, at 242–3.

18 Ibid., at 243.

19 Ibid., at 242–3. See also Moore, supra note 8, at 779.

20 Report of the Secretary-General, Pt II, supra note 5, para. 13.

21 Moore, supra note 8, at 768.

22 Report of the Secretary-General, Pt II, supra note 5, para. 148.

23 Grugel J. and Quijada M., ‘Chile, Spain and Latin America: The Right of Asylum at the Onset of the Second World War’, (1990) 22 Journal of Latin American Studies 353, at 357–8.

24 Ibid., at 361.

25 Grahl-Madsen A., The Status of Refugees in International Law, Vol. 2 (1972), 46. See also Evans A. E., ‘The Colombian–Peruvian Asylum Case: Termination of the Judicial Phase’, (1951) 45 AJIL 755, at 761.

26 Grugel and Quijada, supra note 23, at 355.

27 A. Larzelere, Castro's Ploy: America's Dilemma: The 1980 Cuban Boatlift (1988).

28 K. Clark and R. Figueroa, ‘Ecuador Has Its Sovereignty Too’, Guardian, 16 August 2012.

29 S. Rowley and N. Sheppard Jr, ‘Noriega in Vatican Embassy’, Chicago Tribune, 25 December 1989.

30 Report of the Secretary-General, Pt II, supra note 5, para. 213. See also the views of Argentina, Bolivia, Ecuador, and Uruguay in Report of the Secretary-General, Pt I, supra note 4.

31 Whiteman M., Digest of International Law, Vol. 6 (1968), 451. In the wake of Assange's asylum, The Telegraph and Associated Press published summaries of prominent cases of diplomatic asylum. See ‘Julian Assange Asylum Row: A History of Diplomatic Rifts’, Telegraph, 16 August 2012; ‘Prominent Cases of Asylum-Seeking at Embassies’, Associated Press, 20 June 2012.

32 The Telegraph, 16 August 2012, supra note 31.

33 J. F. Burns, ‘15 Pentecostals to Leave Soviet: 5 Spent 5 years in U.S. Embassy’, New York Times, 27 June 1983.

34 For a legal appraisal: Cole C. V., ‘Is There Safe Refuge in Canadian Missions Abroad?’, (1997) 9 IJRL 654.

35 The Telegraph, 16 August 2012, supra note 31.

37 F. Taylor, The Berlin Wall (2006), 599–636.

38 E. Rosenthal, ‘North Koreans Get Asylum at Beijing Embassies’, New York Times, 27 April 2002; ‘Talks Due on Korean Asylum Seekers’, BBC News, 27 May 2002. The episode was portrayed in a wonderful documentary film: Seoul Train, Dir. J. Butterworth, Incite Productions, 2005.

39 Legault L. H., ‘Canadian Practice in International Law during 1979 as Reflected Mainly in Public Correspondence and Statements of the Department of External Affairs’, (1980) 18 CYIL 301, at 305.

40 Colombian–Peruvian Asylum Case (Colombia v. Peru), Judgment of 20 November 1950, [1950] ICJ Rep. 266, at 274–5.

41 Ibid., at 274; UN General Assembly, Declaration on Territorial Asylum, UN Doc. A/RES/2312(XXII) (1967), Art. 1(1).

42 1889 Treaty on International Penal Law; 1911 Agreement of Extradition; 1928 Havana Convention on Asylum, 132 LNTS 323; 1933 Convention on Political Asylum, 37 Pan-Am. T.S. 48; 1939 Treaty on Political Asylum and Refuge, OAS T.S. 34.

43 1928 Havana Convention on Asylum, Art. 2.

44 1928 Havana Convention on Asylum, Art. 1; 1939 Treaty on Political Asylum and Refuge, Art. 3.

45 1928 Havana Convention on Asylum, Art. 2; 1939 Treaty on Political Asylum and Refuge, Art. 6.

46 Report of the Secretary-General, Pt II, supra note 5, para. 220.

47 Colombian–Peruvian Asylum Case, at 287.

48 Ibid., at 276–7.

49 Ibid., at 277.

50 1954 Convention on Diplomatic Asylum, 1438 UNTS 104, esp. Arts. 4, 6, 7, 11, and 12.

51 UN Doc. A/C.3/227 (1948) and UN Doc. A/C.3/268 (1948).

52 UN Doc. A/C.3/SR.122 (1948).

53 UN Doc. A/RES/1400 (XIV) (1959).

54 (1962) YILC, Vol. 2, at 369, para 45. See further infra note 82.

55 UN Doc. A/RES/3321 (XXIX) (1974).

56 Report of the Secretary-General Pt II, supra note 5.

57 Ibid., para. 242. Also see Report of the Secretary-General Pt I, supra note 4.

58 Ibid., para. 224.

59 Ibid. France, for example, stated that it was ‘among the States which consider that the formulation of rigid rules on this subject might run counter to the humanitarian concerns’ and considered that ‘if . . . an attempt were made to formulate, in the United Nations, rules concerning diplomatic asylum, very great difficulties would be encountered, and the results attained might be the opposite of what was sought’. Belgium expressed that it was ‘not convinced that it would be useful to draw up a legal instrument on principles governing the practice of diplomatic asylum’, because ‘[s]uch an instrument might minimize or have too repressive an effect on the humanitarian motivation and the personal interpretation of certain factors’. Sweden argued that ‘there is no need to codify the circumstances surrounding such evident humanitarian obligations’, since ‘[i]t would not seem immediately necessary to elaborate an international legal instrument in a field where humanitarian rather than strictly legal considerations determine the action of States’.

60 Ibid., para. 243. In a further resolution, the Secretary-General was thanked for his efforts, member states wishing to express further views were invited to do so, and the matter was reserved for a further session. See UN Doc. A/RES/3497 (XXX) (1975).

61 Possible additional topics for study following the implementation of the current programme of work, 1977 YILC, Vol. 2 (Part Two), at 129–30.

62 Foreign Secretary statement on Ecuadorian Government's decision to offer political asylum to Julian Assange, 16 August 2012, https://www.gov.uk/government/news/foreign-secretary-statement-on-ecuadorian-government-s-decision-to-offer-political-asylum-to-julian-assange.

63 Cf. North Sea Continental Shelf (Germany v. Denmark; Germany v. The Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep. 3, at 43. Morgenstern, in particular, has forcefully rejected the proposition that a right to grant diplomatic asylum is part of customary law. See Morgenstern, supra note 17, at 241–6. Also see Porcino, supra note 4, at 445–6; Sinha, supra note 5, at 238; Gilbert B., ‘The Practice of Asylum in Legations and Consulates of the United States’, (1909) 3 AJIL 562, at 585; Rossitto A. M., ‘Diplomatic Asylum in the United States and Latin America: A Comparative Analysis’, (1987) 13 Brooklyn JIL 111, at 114.

64 Morgenstern F., ‘Diplomatic Asylum’, (1951) 67 Law Quarterly Review 362, at 362; Morgenstern, supra note 17, at 242–3.

65 Grahl-Madsen, supra note 25, at 46; Morgenstern (1951), supra note 64, at 376; Porcino, supra note 4, at 446–7. Cf. Colombian–Peruvian Asylum Case, at 282–3, where the ICJ noted (albeit in relation to the 1928 Havana Convention on Asylum): ‘[A]sylum may be granted on humanitarian grounds in order to protect political offenders against the violent and disorderly action of irresponsible sections of the population’.

66 Morgenstern, supra note 64, at 377.

67 US Department of State Foreign Affairs Manual, 2 FAM 227.1(a) and 227.2(b).

68 Ibid., para. 227.1(a).

69 Staatscourant 2003, No. 173, at 17.

70 Legault summarized the official Canadian position as follows: ‘[D]iplomatic missions may not grant asylum on the premises of a post except in extraordinary circumstances. The sort of circumstances that we have in mind is when temporary asylum would be granted on humanitarian grounds to a person whether a Canadian citizen or not, if he is in imminent personal danger of his life during political disturbances or riots, with care being taken to ensure that the humanitarian character of the mission's intervention should not be misinterpreted’, supra note 39, at 305. See also Cole, supra note 34, at 659–61.

71 G. Noll, J. Fagerlund, and F. Liebaut, Study on the Feasibility of Processing Asylum Claims outside the EU against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure (2003).

72 See, e.g., the US Department of State Foreign Affairs Manual, 2 FAM 227.1(c); and the statement of facts in R (B and Others) v. Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344, [2005] QB 643.

73 Morgenstern, supra note 17, at 236.

74 Morgenstern, supra note 64, at 376. See also Riveles S., ‘Diplomatic Asylum as a Human Right: The Case of the Durban Six’, (1989) 11 HRQ 139, at 158.

75 Note that while Grahl-Madsen first suggests (at 46) that this exception may even be invoked vis-à-vis the authorities of the territorial state, he concludes (at 77) that this ‘office of humanity’ may not be exercised vis-à-vis the lawful organs of the territorial state. See Grahl-Madsen, supra note 25, at 46–7 and 77.

76 Roberts I. (ed.), Satow's Diplomatic Practice (2009), at 108; Jennings R. and Watts A. (eds.), Oppenheim's International Law, Vol. 1 (1992), at 1085.

77 Colombian–Peruvian Asylum Case, at 284.

78 Ibid., at 284.

79 This section is partially based on M. den Heijer, Europe and Extraterritorial Asylum (2012), 116–18.

80 Jeffery, supra note 4, at 18. See further the discussion in Sinha, supra note 5, at 20–7.

81 Van Bynkershoek stated it as follows: ‘All the privileges of ambassadors which they use in accordance with the tacit agreement of nations have been instituted for the sole purpose of enabling them to perform the duties of their office without delay and without hindrance from anyone. But they can do this safely even if they do not receive or conceal criminals and refrain from perverting . . . the jurisdiction of the prince in whose country they are’. Van Bynkershoek was of the opinion that ambassadors should open their houses to the pursuit and seizure of criminals and that the sovereign states, to that purpose, have a perfectly valid legal basis for entering it by force. See Van Bynkershoek, supra note 3, Ch. XXI, at 114–15. See further Sinha, supra note 5, at 24–6.

82 See 1961 Vienna Convention on Diplomatic Relations, 500 UNTS 95, Art. 3; and 1963 Vienna Convention on Consular Relations, 596 UNTS 261, Art. 5.

83 Under both Conventions, a provision on asylum was proposed which would prevent states from offering shelter to persons charged with an offence under local law. Both were defeated under the reasoning that the subject of asylum was not intended to be covered. An additional reason for not taking in such provision in the VCCR was that it might be deduced a contrario that the right of asylum did impliedly exist under the VCDR. For references, see E. Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (2008), at 141; and L. T. Lee, Consular Law and Practice (1991), at 398. Regarding the VCDR, see further the discussions in the ILC: Diplomatic intercourse and immunities, 1957 YILC, Vol. 1, at 54–7.

84 Diplomatic intercourse and immunities, 1957 YILC, Vol. 1, at 144. See also Draft articles on diplomatic intercourse and immunities, 1958 YILC, Vol. 2, at 104. Denza infers from the drafting history that the clauses ‘other rules of general international law’ and ‘special agreements in force between the sending and receiving states’ both cover asylum in diplomatic premises, implying that the prohibition to use premises for other than recognized functions would also be waived in circumstances where diplomatic asylum is permitted under customary international law. See Denza, supra note 83, at 471–2. It does not follow from the ILC discussions, however, that it was contemplated that diplomatic asylum formed part of customary international law.

85 Art. 41(1) and (3)VCDR and Art. 55(1) and (2)VCCR.

86 Art. 22(1) VCDR and Art. 31(2) VCCR.

87 Denza, supra note 83, at 471; B. S. Murty, The International Law of Diplomacy: The Diplomatic Instrument and World Public Order (1989), at 417.

88 Contra, Jeffery, supra note 4, at 18–19.

89 Art. 22(1) and (3)VCDR.

90 Emphasis added.

91 Lee, supra note 83, at 387.

92 Ibid., at 398.

93 Grahl-Madsen, supra note 25, at 50.

94 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 60(2)(b).

95 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment of 24 May 1980, [1980] ICJ Rep. 3, at 40.

96 Ibid., at 39–40.

97 Article 45(b) VCDR further makes it possible for the sending state when diplomatic relations are broken off to entrust the custody of the mission to a third state acceptable to the receiving state.

98 This particular passage is cited in OAS Resolution of the Twenty-Seventh Meeting of Consultation of Ministers of Foreign Affairs, RC.27/RES. 1/12 rev. 3, 5 September 2012.

99 D. Pearse, ‘Julian Assange Can Be Arrested in Ecuador Embassy, UK Warns’, Guardian, 16 August 2012; A. Wallace, ‘Julian Assange: UK “Threat” to Arrest Wikileaks Founder’, BBC News, 16 August 2012.

100 Art. 1(3) Diplomatic and Consular Premises Act 1987. Note that para. 4 of that provision provides that withdrawal of diplomatic states shall only occur if the Secretary of State is satisfied that to do so is permissible under international law.

101 Cf. Denza, supra note 83, at 471, arguing that ‘[p]remises which are used solely for such [i.e., abusive] purposes may, of course, not be accepted by the receiving State as constituting “premises of the mission” at all within the definition given in Article 1 of the Convention’. Emphasis added.

102 Draft articles on diplomatic intercourse and immunities, 1958 YILC, Vol. 2, at 104. Draft Article 20 corresponds with Article 22 VCDR. In response to Assange's asylum, the Ministers of Foreign Affairs of the Organization of American States adopted a resolution in which they rejected ‘any attempt that might put at risk the inviolability of the premises of diplomatic missions’, reiterated the obligation of states ‘not to invoke provisions of their domestic law to justify noncompliance with their international obligations’ and expressed ‘solidarity with and support for the Government of the Republic of Ecuador’, supra note 98, para. 4. The United States, voting in favour of the resolution, did declare in respect of that particular paragraph that there were no indications that the United Kingdom had invoked domestic law contrary to international law. Canada voted against the resolution.

103 Denza, supra note 83, at 150.

104 D. Crary, ‘President Botha Greets Soldier Freed in Four-Way Swap’, Associated Press, 3 September 1987. For an extensive account see K. de Jonge, Dagboek uit Pretoria (1987).

105 ‘An Ecuadorean History of the World’, The Economist, 25 August 2012.

106 Foreign Secretary statement, supra note 62. ‘WikiLeaks: Met Police Embarrassed as Assange Arrest Plan Revealed’, Telegraph, 24 August 2012.

107 E.g. Grahl-Madsen, supra note 25, at 48–50.

108 Colombian–Peruvian Asylum Case, at 279.

109 J. Keating, ‘Can You Smuggle a Person in Diplomatic Mail?’, Foreign Policy Blog, 15 August 2012, http://blog.foreignpolicy.com/posts/2012/08/15/can_you_smuggle_a_person_in_diplomatic_mail; C. Gardner, ‘Julian Assange: Can He Get out of This?’, Head of Legal, 21 August 2012, http://www.headoflegal.com/2012/06/26/julian-assange-can-he-get-out-of-this; Akande, supra note 2.

110 Moore, supra note 8, at 760.

111 Extensively Denza, supra note 83, at 160–1, and 205–10.

112 Art. 22(3), 27(3)(5), and Art. 6 VCDR. It is, however, accepted that diplomatic bags can be screened for safety purposes by a receiving state or airliner, as long as the diplomatic contents of the bag are not compromised; see extensively Roberts, supra note 76, at 116–18.

113 United States Diplomatic and Consular Staff in Tehran, at 40.

114 E.g., US Department of State, ‘Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities’, Department of State Publication 10524, July 2011, Ch. V: ‘Personal inviolability is, however, qualified by the understanding, well established in international practice, that the host country does not give up its right to protect the safety and welfare of its populace and retains the right, in extraordinary circumstances, to prevent the commission of a crime’.

115 See, extensively, Ross M. S., ‘Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Priviliges and Immunities’, (1989) 4 AUJILP 173.

116 In July 1984, Nigerian government agents attempted to abduct the former Nigerian civilian government minister Umaru Dikko out of the United Kingdom in a large crate to be loaded on to a Nigerian Airways cargo airplane. The crate was, however, not labelled as a diplomatic bag, allowing customs officials to open it and foil the kidnapping. The diplomats involved in the kidnapping were declared persona non grata. See HC Deb 6 July 1984, Vol. 63, cols. 609–17. In November 1964, a 30-year-old man was found drugged, bound, and gagged in a trunk at Rome airport that was marked as diplomatic mail. Two Egyptian diplomats were accused of the smuggling attempt and declared persona non grata. See ‘Italy Expels 2 Egyptian Envoys Accused in Trunk Abduction Attempt’, New York Times, 19 November 1964.

117 Statement of the Government of the Republic of Ecuador on the asylum request of Julian Assange, 17 August 2012.

118 ‘Stratfor Emails: U.S. Has Issued Sealed Indictment against Julian Assange’, Press release Wikileaks, 28 February 2012.

119 Statement of the Government of the Republic of Ecuador, supra note 117.

120 Cf. K.R.S. v. United Kingdom, Decision on Admissibility of 2 December 2008, ECHR, App. No. 32733/08.

121 C. Summers, ‘Wikileaks Founder Julian Assange “Buoyed by Support”’, BBC News, 25 June 2012.

122 E.g., Steyn J., ‘Guantanamo Bay: The Legal Black Hole’, (2004) 53 ICLQ 1.

123 Mohammed Alzery v. Sweden, CCPR/C/88/D/1416/2005, UN Human Rights Committee, 10 November 2006; Ahmed Hussein Mustafa Kamil Agiza v. Sweden, CAT/C/34/D/233/2003, UN Committee against Torture, 20 May 2005.

124 Art. 14(1) Universal Declaration of Human Rights (referring to the right ‘to seek and to enjoy asylum’); Art. 1 Declaration on Territorial Asylum, supra note 41; Art. 18 Charter of Fundamental Rights of the European Union.

125 In the context of so-called ‘Protected Entry Procedures’, Noll has earlier surveyed whether a legally binding right to be granted protection in embassies can be derived from human rights. See Noll G., ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’, (2005) 15 IJRL 542.

126 R. Alleyne, ‘Wikileaks: Julian Assange Will Take Britain to the “World Court”’, Telegraph, 17 August 2012.

127 Statement of the Government of the Republic of Ecuador, supra note 117.

128 UNHCR guidelines specify that the offence of rape is to be qualified as a serious non-political crime; see UN High Commissioner for Refugees, Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, 4 September 2003, HCR/GIP/03/05, para. 14. Further, the issuing of an arrest warrant probably satisfies the threshold of ‘serious reasons for considering that’. Exclusion from refugee status does not require formal proof of previous penal prosecution. See UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/PRO/4 (1979), re-edited January 1992. British courts had established that Assange was required for the purposes of being tried after being identified as the perpetrator of specific criminal offences and should therefore be considered as accused of the offences specified in the European Arrest Warrant: Swedish Prosecution Authority v. Assange, [2011] EWHC 2849 (Admin), para. 140.

129 UNHCR Guidelines, ibid., para. 2. See also UNHCR, ‘Addressing Security Concerns without Undermining Refugee Protection, UNHCR's Perspective’, Position Paper, 29 November 2001, para. 3.

130 Art. 1(A)(2) 1951 Refugee Convention: ‘is outside the country of his nationality and is unable or . . . unwilling to avail himself of the protection of that country’.

131 Letter from Australian Attorney General regarding Julian Assange, June 2012, http://wikileaks.org/Effective-Declaration-of.html.

132 Art. 33(1) 1951 Refugee Convention. See extensively Noll, supra note 125, at 548–56. The United States Supreme Court and the House of Lords have considered that Art. 33(1) Refugee Convention cannot entertain extraterritorial effect at all. See Sale v. Haitian Centers Council, 509 US 155 (Sup.Ct. 1993), at 181–2; Regina v. Immigration Officer at Prague Airport and Another, ex parte European Roma Rights Centre and Others, [2004] UKHL 55, paras. 17–18 and 70.

133 E.g., Saadi v. Italy [GC], Decision of 28 February 2008, [2008]ECHR.

134 E.g., Orakhelashvili A., ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’, (2003) 14 EJIL 529; M. Milanovic, Extraterritorial Application of Human Rights Treaties (2011).

135 Al-Skeini and Others v. the United Kingdom [GC], Decision of 7 July 2011, [2008] ECHR, para. 134. See also Banković and Others v. Belgium [GC], Decision on Admissibility of 12 December 2011, [2001-XII] ECHR, para. 73; X v. Federal Republic of Germany, Commission Decision of 25 September 1965, App. No. 1611/62; X v. the United Kingdom, Commission Decision of 15 December 1977, App. No. 7547/76; W. M. v. Denmark, Commission Decision of 14 October 1993, App. No. 17392/90.

136 Vidal Martins v. Uruguay, No. 57/1979, UN Doc. CCPR/C/15/D/57/1979 (1982), at 157; Lichtensztejn v. Uruguay, No. 77/1980, UN Doc. CCPR/C/OP/2 (1990), at 102; Montero v. Uruguay, No. 106/1981, UN Doc. CCPR/C/OP/2 (1990), at 136; Nunez v. Uruguay, No. 108/1981, UN Doc. CCPR/C/OP/2 (1990), at 143. Cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 180: ‘the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’.

137 W.M. v. Denmark, supra note 135.

138 Mohammad Munaf v. Romania, No. 1539/2006, UN Doc. CCPR/C/96/D/1539/2006, para. 14.5.

139 For the precise formula as to when such responsibility arises, cf. inter alia Saadi v. Italy, supra note 133, para. 125: ‘However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3’.

140 Al-Saadoon and Mufdhi v. the United Kingdom, Decision of 2 March 2010, [2010] ECHR, paras. 141–143.

141 Ibid., para. 162.

142 R (B) v. Secretary of State for Foreign and Commonwealth Affairs, EWCA Civ 1344, [2005] QB 643.

143 Ibid., paras. 85–89.

144 Ibid., paras. 93–94. The same test was applied in R (on the application of (1) Faisal Attiyah Nassar Al-Saadoon (2) Khalaf Hussain Mufdhi) v. Secretary of State for Defence, [2008] EWHC 3098 (Admin).

145 M. C. Garćia, Havana USA: Cuban Exiles and Cuban Americans in South Florida, 1959–1994 (1996), 55.

146 In the case of Short, the Dutch Supreme Court held that, in case of irreconcilable international obligations stemming from an extradition treaty and the ECHR, there is no conflict rule setting forth that primacy should be accorded to the ECHR. The Supreme Court thus established the rule that in case of irreconcilable international obligations, the interests protected by both obligations should be balanced. See Hoge Raad, 30 March 1990, Nederlandse Jurisprudentie 1991, at 249.

147 Al-Saadoon, supra note 140, para. 140.

148 In this vein Porcino, supra note 4, at 450; Jeffery, supra note 4, at 24–6.

149 ‘Ecuador Minister to Meet Hague on Assange's 100th Day in Embassy’, Guardian, 26 September 2012.

150 Haya de la Torre Case (Colombia/Peru), Judgment of 13 June 1951, [1951] ICJ Rep. 71, at 83.

151 Ibid.

* MA (Leiden), LL M (Leiden), PhD (Leiden). Assistant Professor of International Law, Amsterdam Center for International Law, University of Amsterdam []. The author wishes to thank Isabelle Swerissen and Evelien van Roemburg for their helpful comments. The usual disclaimer applies.

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